Tuesday, June 13, 2017

An Unconstitutional Congress

In Buckley v. Valeo, the Supreme Court ruled that the Constitution’s separation of powers requires that the only branch of government that can create a federal office—Congress, through passing legislation—is also the one branch that can never then appoint someone to fill the office it had just created. Congress must, instead, specify in the statute who can appoint someone to fill that office, choosing between the president, one of the president’s senior subordinates, such as the attorney general or other cabinet officers, or the courts.

Quoting the rule from its 1926 case, Myers v. United States, the Court declared, “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.”

Consequently, the Court in Buckley struck down that provision in federal law for violating the Constitution’s Appointments Clause. Following that decision, all FEC commissioners are nominated by the president and confirmed by the Senate.

That is precisely the issue here. Schiff is threatening to take action that the Supreme Court has clearly and repeatedly held unconstitutional.